Southwestern Surety Ins. v. Treadway

Citations

• 113 Miss. 189
• 74 So. 143

Syllabus

<p>1. Judgment. Negligence of attorney. Failure-to appear.</p> <p>A client is bound by the negligence of his attorney in failing to appear wh_sh duly summoned by the court.</p> <p>2. Judgment. Betting aside default. -Affidavit of defense. Sufficiency.</p> <p>Whej-e a judgment by default on an accident insurance policy was tfiken and defendant made a motion to set the same aside, an Affidavit for the defense stating that it had a meritorious'defense 'and that insured was the aggressor in the difficulty in which J he was killed and that consequently his death was not affected / through accidental means, w.as sufficient for the purposes of the motion.</p> <p>3. Judgment. Setting aside default. Discretion of court.</p> <p>While a large discretion rests with the circuit judge in dealing with motions to set aside default judgments still no fixed and iron clad rule can safely be adopted, but.the court must look to the facts of the particular case, the rule in this state is that a motion to set aside a judgment, supported by an affidavit of meritorious defense, should be granted where the opportunity for a trial at the same term of court has not been lost.</p> <p>4. Setting Aside Default Judgment. Intention to appear. Mistake.</p> <p>Where a judgment by default was rendered against a foreign insurance company which intended to appear and make a bona fide defense but through 'the mistake of its counsel failed to do so, and which filed a proper motion and affidavit to set aside the judgment within a few hours after it was rendered and while a trial of the case could be had at the same term. In such case the motion should have been sustained.</p> <p>5. Same.</p> <p>If it appears that defendant had been duly summoned to appear at a certain day to defend a suit against him, and he treated the summons or process of the court with indifference and he intended, for any fancied reason known to himself, not to appear, and does not appear, thus intentionally ignoring the process of th